This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP266

Cir. Ct. No.2004CI2

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT III

In re the commitment of Kenneth Roberts:

State of Wisconsin,

Petitioner-Respondent,

v.

Kenneth Roberts,

Respondent-Appellant.

APPEAL
from an order of the circuit court for Oneida County:mark A.
mangerson, Judge.Affirmed.

Before Lundsten, P.J., Sherman and Blanchard, JJ

¶1BLANCHARD, J. Kenneth Roberts appeals an
order denying his petition for discharge from commitment under Wis. Stat. ch. 980 (2009-10).[1]Roberts contends that the circuit court erred
in denying his petition without holding a full discharge hearing under Wis. Stat. § 980.09(2) and (3).We conclude that the court did not err in
denying the petition without holding the full hearing.Accordingly we affirm.

BACKGROUND

¶2In June 2005, Roberts was committed as a sexually violent
person under Wis. Stat. ch. 980.[2]In January 2010, Roberts filed a petition for
discharge.See Wis. Stat. § 980.09.The petition contained two substantive
paragraphs and had no attachments.

¶3Roberts alleged in his petition that new research indicates
that levels of recidivism, at least as measured by diagnostic instruments, are
much lower than previously thought, including in particular new scoring methods
for the “Static-99” diagnostic instrument.He further alleged that, if he were evaluated under new scoring methods
for diagnostic instruments, he would no longer be eligible for commitment.More specifically, Roberts alleged that,
“Based on the new scoring[,] … Mr. Roberts would[] statistically speaking have
a less than [] 22% chance of recidivism.”Roberts also alleged that a “new actuarial [instrument] has started to
be implemented … which takes into account the age of the offender,” and that
his age of fifty-three “puts him into the category where his likelihood to
re-offend drops.Using this method, Mr.
Roberts would likely be placed in the low to moderate reoffend category.”

¶4Also in the record at the time of Roberts’ petition was an annual
evaluation report regarding Roberts prepared by Dr. William Merrick.Dr. Merrick’s report had been transmitted to
the court in December 2009 pursuant to Wis.
Stat. § 980.07(6).The
allegations in Roberts’ petition appeared to be drawn, at least in part if not entirely,
from Dr. Merrick’s report.

¶5Dr. Merrick’s report showed that Dr. Merrick had re-scored
Roberts using updated statistical tables for the Static-99 to yield a predicted
rate of future recidivism of twenty-two percent within five years and thirty-two
percent within ten years.However, based
on Roberts’ combined scores on the Static-99 and another instrument, Dr.
Merrick concluded in the report that Roberts’ risk of sexual recidivism was in
the “[h]igh [r]isk” range.

¶6In addition, Dr. Merrick determined in his report that
Roberts had failed to show improvement in several “dynamic” risk factors,
including but not limited to a failure to submit to therapy that might be used
to determine whether Roberts’ clinical diagnoses had changed, a failure to make
progress in correcting distorted attitudes, and a failure to complete treatment.
Dr. Merrick concluded that “Mr. Roberts
has not made significant changes in any of th[e]se dynamic risk factors that
could potentially lower his risk ….”Dr.
Merrick acknowledged that relatively “advanced age” can be a dynamic risk
factor associated with reduced risk but specifically noted that, because
Roberts’ sexually violent offense occurred when he was already forty-seven
years old and incarcerated, “in [Roberts’] case, his risk of future violent
sexual offending is not lowered to any substantive degree by this factor.”

¶7Based on all of his findings, Dr. Merrick’s ultimate
conclusion in his report was that Roberts remained more likely than not to commit
another sexually violent offense if discharged and, therefore, was not a proper
subject for discharge.

¶8In August 2010, the circuit court conducted a hearing as part
of its review to determine whether Roberts was entitled to the full discharge
hearing he sought.The State opposed holding
a full discharge hearing. Counsel for
Roberts acknowledged at the hearing that she did not have an independent
examiner’s report or any other evidence to offer in support of the petition,
apart from Dr. Merrick’s report.

¶9The circuit court addressed Roberts’ petition for discharge
under State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513,
which describes the two-step process for obtaining a full discharge hearing
under Wis. Stat. § 980.09.[3]The court concluded that the allegations in
Roberts’ petition were insufficient to meet the threshold first step of the Arends
two-step process, because those allegations showed only that the assessment
methodology had changed, not that Roberts’ condition or particular risk to
reoffend had changed.In addition, the
court concluded that, even if the petition allegations had been sufficient,
Roberts’ failure to offer any expert opinion in his favor meant that Roberts
could not satisfy the second step of the two-step process required for a full
discharge hearing.Roberts now appeals
the resulting order.[4]

DISCUSSION

¶10The parties agree that this appeal turns on whether the facts
of this case satisfy the legal standards under Wis.
Stat. § 980.09 and Arends.Interpreting and applying statutes or other
legal standards to facts presents a question of law, which we review de
novo.See Arends, 325 Wis. 2d
1, ¶13.

¶11We first summarize the process that courts undertake to
determine whether a petitioner is entitled to a full discharge hearing under Wis. Stat. § 980.09, as explained
in Arends.As indicated above, the process involves two
potential steps.

¶12First, the court conducts an initial paper review of the
petition and supporting documents to determine if, assuming all alleged facts
to be true, the court or a jury “may conclude” that the petitioner does not
meet the criteria for commitment as a sexually violent person.Id., ¶¶23-30.If the petition does not allege sufficient
facts to support that determination, the court must deny the petition.Id., ¶30.The court in Arends analogizes this
step of the process to court review of a motion to dismiss for failure to state
a claim upon which relief can be granted under Wis.
Stat. § 802.06(2)(a).Id.,
¶29.

¶13If the petition alleges sufficient facts, the court conducts
the second step of the process to determine whether the petitioner is entitled
to a full discharge hearing.Id.This requires the court to examine current
and past re-examination reports and treatment progress reports, relevant facts
in the petition and the State’s response, counsel’s arguments, and any
supporting documentation provided by the parties.Id., ¶¶31-32.The court may hold a separate hearing, as
occurred in this case, as part of its review to determine whether the
petitioner is entitled to a full discharge hearing.Seeid.If a review of the entire record reveals “any
facts” that would allow a reasonable fact finder to determine that the
petitioner is not a sexually violent person, the court must hold a full
discharge hearing; otherwise, the court must deny the petition.Id., ¶43.

¶14Having summarized the two-step process under Wis. Stat. § 980.09, we now explain
why we conclude that Roberts has failed to demonstrate on appeal that the
circuit court erred in denying him a full discharge hearing.

¶15Initially, we note some confusion as to whether Dr. Merrick’s
report should be considered part of Roberts’ petition for purposes of the first
step of the process.As suggested above,
Roberts’ petition appeared to draw directly from, but did not expressly
reference or attach, Dr. Merrick’s report.The apparent direct borrowings from this report created potential
ambiguity from the start as to whether Roberts meant to incorporate by
reference at least portions of the report into the petition.Now on appeal, Roberts’ arguments seem to
assume that we should consider the substance of at least portions of the report
for purposes of step one.However, the
State’s arguments seem to assume, without explaining why, that we should
not.We need not resolve which party is
correct on this point, because we will assume, without deciding, that Roberts’
petition was sufficient to survive step one of the two-step process.This obviates the need to address whether
portions of Dr. Merrick’s report should be considered in the first step of the
process and the need to address other arguments of the parties that involve
only the first step of the process.Operating from our assumption, we agree with the circuit court that
Roberts’ petition fails under step two for the reasons explained below.[5]

¶16The only material that Roberts relies on in arguing that he met
step two of the two-step process consists of the two substantive paragraphs in
his petition and Dr. Merrick’s report, as already described above.Roberts’ argument is, in essence, this:Roberts’ updated Static-99 score, showing a
predicted rate of future recidivism of only twenty-two percent within five
years and thirty-two percent within ten years, constitutes the “any facts” from
which a fact finder could reasonably conclude that he is no longer a sexually
violent person, despite all of Dr. Merrick’s other findings and Dr. Merrick’s ultimate
opinions that Roberts was more likely than not to re-offend and therefore
remained a sexually violent person.We
are not persuaded.

¶17Dr. Merrick’s report expresses the view, at least implicitly, that
Roberts’ Static-99 scores standing alone are not reliable predictors of
Roberts’ likelihood to reoffend over his lifetime.Rather, it is clear from Dr. Merrick’s report
that he concluded that, in order to opine reliably regarding Roberts’ risk to
reoffend over Roberts’ lifetime, one needed to consider not only the Static-99
but the other diagnostic instrument as well as “dynamic” factors, none of which
favored Roberts.

¶18Thus, given Dr. Merrick’s report, Roberts would have needed, at
a minimum, to point to some other expert evidence or legal authority suggesting
that his Static-99 scores, limited as they were to five-year and ten-year
projections, could, by themselves, be credible evidence of his risk to reoffend
over his lifetime.Roberts did not
direct the circuit court to any such evidence or authority, and does not direct
this court to any such evidence or authority now.

¶19Although the allegations in Roberts’ petition might be read, when
viewed in isolation and without reference to Dr. Merrick’s report, to suggest
that Roberts has only a twenty-two percent risk to reoffend over his lifetime, it
is clear, when the petition is considered with Dr. Merrick’s report, as is
appropriate under step two, that a reasonable fact finder could not reach such
a conclusion on this record.More
specifically, it is clear that Roberts’ petition cites the twenty-two percent
figure from the report selectively and imprecisely.As indicated above, the report shows that the
twenty-two percent figure in the petition is only in reference to Roberts’ risk
to reoffend within five years as measured only by the Static-99, isolated from
other factors.Similarly, the report
makes clear that the thirty-two percent figure is only in reference to Roberts’
risk to reoffend within ten years as measured only by the Static-99, isolated
from other factors.We recognize that
Roberts had reached the relatively advanced age (for purposes here) of fifty-three
at the time of the petition.However,
this does not change our view of what a fact finder could or could not reasonably
conclude from all available information under the step-two analysis,
particularly given Dr. Merrick’s finding that Roberts’ age was not a factor
that might lead to reduced risk in Roberts’ particular case.

¶20Stated another way, the only reasonable reading of Dr.
Merrick’s report is that he concluded that Roberts’ lifetime recidivism risk
exceeds fifty percent, and that the re-scored Static-99 is not, by itself,
reliable evidence to the contrary.There
is simply no basis on this record, as Roberts now argues, to conclude that Dr.
Merrick’s report “contains facts from which a reasonable trier of fact could
conclude [that] Roberts does not pose the requisite risk to reoffend.”

¶21It is true, as Roberts argues, that a fact finder is not necessarily
bound by the opinion of any expert. SeeState v. Wenk, 2001 WI App 268, ¶9,
248 Wis. 2d 714, 637 N.W.2d 417.However, this general rule does not assist Roberts, because he presents
no alternative opinion that a fact finder could reasonably rely on.And, for reasons we have already explained,
Roberts provides no support for the proposition that a fact finder could
reasonably choose to rely solely on his re-scored Static-99, to the exclusion
of the rest of Dr. Merrick’s report, to conclude that his risk to reoffend over
his lifetime is less than fifty percent.Such a proposition, if theoretically supportable, is not one that could
be considered to be within the common knowledge of the fact finder.

¶22It is also true, as Roberts stresses on appeal, that a petition
may be based on a change in the understandings of professionals and the research
results used to evaluate the person’s mental disorder or dangerousness, “not
only [on] a change in the person himself or herself.”See State v. Ermers, 2011 WI App 113, ¶31,
336 Wis. 2d 451, 802 N.W.2d 540.Yet,
this general proposition does not undercut Dr. Merrick’s more specific
conclusions as to Roberts’ particular situation, especially given that Roberts
acknowledges that Dr. Merrick took into account changes in research results and
evaluation tools.

¶23Thus, we conclude on this record that the circuit court was
presented with no facts from which a court or jury could conclude that Roberts no
longer meets the criteria for commitment as a sexually violent person.

CONCLUSION

¶24For these reasons, we conclude that the circuit court did not err
in denying Roberts’ petition without holding a full discharge hearing under Wis. Stat. § 980.09.

By the Court.—Order affirmed.

Not
recommended for publication in the official reports.

[1] All
references to the Wisconsin Statutes are to the 2009-10 version unless
otherwise noted.

[2] “‘Sexually
violent person’ means a person who has been convicted of a sexually violent
offense ... and who is dangerous because he or she suffers from a mental
disorder that makes it likely that the person will engage in one or more acts
of sexual violence.” Wis. Stat. § 980.01(7). “‘Likely’” means “‘more likely than not,’”
which means that the offender is more than fifty percent likely to commit
another sexually violent offense. State
v. Smalley, 2007 WI App 219, ¶¶3, 10, 305 Wis. 2d 709, 741 N.W.2d
286 (citation omitted).

[3] Likely
through scrivener’s error, the first subsection of Wis. Stat. § 980.09 is not numbered.Therefore, we follow the logical convention
used in State v. Arends, 2010 WI 46, ¶23, 325 Wis. 2d 1, 784 N.W.2d
513, and elsewhere, to assume that there is a missing “(1),” and we refer to
the first subsection of the statute as “§ 980.09(1).”

[4] For
reasons not relevant to this appeal, the written order that Roberts now appeals
was not entered until approximately one year after the hearing at which the
circuit court denied Roberts’ petition.

[5] When
Roberts’ trial counsel acknowledged in the circuit court that she did not have
the report of any expert other than Dr. Merrick to offer in support of Roberts’
petition, she seemed to concede, in the following exchange with the circuit
court, that Roberts could not meet step two of the two-step process without
such an additional report:

[COUNSEL]: …
I don’t have an expert to back [the petition] up at this point.

THE
COURT: I did authorize a hearing of an expert.

[COUNSEL]: [That
expert] didn’t do a report.I discussed
it orally and I basically called and your judicial assistant said [the expert]
can do a report but the county is going to get the bill.[The expert]’s willing to write up a report
if the Court wants to do that but I know how these funding issues go.

I was trying to minimize that since
I wouldn’t present it[.]Then [the
State’s attorney] would have the opportunity to use it and then—I can have [the
expert] do that, I just didn’t want it so—

THE
COURT: Well so if we did go forward to a probable cause hearing
today you couldn’t reach that burden?

[COUNSEL]: No,
I could not your Honor.

However,
the State does not argue that this exchange constituted a concession on step
two, and rather than determine whether Roberts forfeited his argument regarding
step two, we simply address that argument on its merits.